COMMONWEALTH OF AUSTRALIA and AIR MARSHAL ERROL JOHN McCORMACK IN HIS CAPACITY AS CHIEF OF AIR FORCE v RUSSELL VANCE [2005] ACTCA 35 (23 August 2005)
EVIDENCE – privileges – legal professional privilege – Evidence Act 1995 (Cth) – in-house lawyers – whether the legal advice is independent of the employment relationship.
EVIDENCE – privileges – legal professional privilege – practising certificates – whether legal professional privilege attaches only where there is an actual right to practice.
EVIDENCE – privileges – parliamentary privilege – evidence given to a Senate Committee – whether parties can lead evidence, cross-examine or make submissions as to what was said to Senate Committee – effect of s 16 Parliamentary Privileges Act 1987 (Cth).
S McNichol, ‘Client Legal Privilege and Legal Professional Privilege: Considered, Compared and Contrasted’, (1999) 18 Australian Bar Review 189
No ACTCA 31-2004 No SC 317 of 2001
Judge: Gray, Connolly and Tamberlin JJ Court of Appeal of the Australian Capital Territory Date: 23 August 2005
IN THE SUPREME COURT OF THE) No ACTCA 31-2004 ) No SC 317 of 2001 AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:COMMONWEALTH OF
AUSTRALIA
First Applicant
AND:AIR MARSHAL ERROL JOHN McCORMACK IN HIS CAPACITY AS CHIEF OF AIR FORCE
Second Applicant
AND:RUSSELL VANCE
Respondent
ORDER
Judge: Gray, Connolly and Tamberlin JJ Date: 23 August 2005 Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed.
The orders of Crispin J be set…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Commonwealth v Vance [2005] ACTCA 35
Case
[2005] ACTCA 35
Decision Date
CaseChat Overview and Summary
The Commonwealth of Australia and Air Marshal Errol John McCormack, in his capacity as Chief of Air Force, appealed a decision of Crispin J of the Supreme Court of the Australian Capital Territory. The dispute concerned the termination of the respondent's employment with the Royal Australian Air Force. The applicants sought to claim legal professional privilege over certain documents prepared by legal officers within the Defence Legal Office.
The primary legal issues before the Court of Appeal were whether legal professional privilege attaches to documents prepared by in-house lawyers who do not hold current practising certificates, and whether the admission of evidence concerning parliamentary proceedings was contrary to the *Parliamentary Privileges Act 1987* (Cth). A further preliminary issue arose regarding whether the claim for privilege should be determined under the common law or the *Evidence Act 1995* (Cth), given amendments to the Supreme Court Rules (ACT) concerning pre-trial discovery.
The Court of Appeal held that the *Evidence Act 1995* (Cth), not the common law, governed the determination of privilege for pre-trial discovery, as procedural rules are applied to ongoing litigation. The Court found that the trial judge erred in holding that a current practising certificate was a prerequisite for legal professional privilege. Applying the *Evidence Act*, the Court determined that the definition of "lawyer" and "legal advice" did not necessitate a current practising certificate, focusing instead on whether the communication was made for the dominant purpose of providing legal advice to a client, where "client" includes an employer such as the Commonwealth. The Court also noted that the respondent had not objected to the admission of the parliamentary material before the trial judge, and therefore, the appeal on that ground was unlikely to succeed.
The appeal was allowed, and the orders of Crispin J were set aside, except for the costs order relating to a recall notice of motion. The matter was remitted for determination in accordance with the reasons provided by the Court of Appeal. Leave to appeal from the decision concerning the costs of the recall notice of motion was refused.